The statutory right of withdrawal means that the buyer has the right to cancel the distance purchase of a product for a period of 7 business days after receipt thereof, without stating reasons. That period shall be extended up to 3 months if the seller (web retailer) has not fulfilled the applicable obligations to disclose information ensuing from the Distance Selling Act (in Dutch: Wet koop op afstand). The question now is: when purchasing online products (a bicycle, for instance), should you wait until you receive the product before being able to cancel the purchase (as it appears to follow from the law) or can that take place earlier, which seems logical? It can take place earlier, as stated in the ruling of the Sub-District Court of Arnhem on 12 September 2011.
What is going on here?
The issue in this case between Tom Bikes and a consumer revolved around the online purchase of a BMX bike. The consumer placed an order for the bike on 22 September 2010. The bike was to have been picked up in Bladel, the Netherlands, on 23 September 2010. When the online order was placed, the consumer also agreed to the general sales conditions of Tom Bikes. Ultimately, the bike was not picked up and payment was not forthcoming. Subsequently, Tom Bikes demanded payment of the agreed amount plus interest. The consumer put up a defence in his letter of 25 October 2010, alleging that the wrong bike was ready for pick-up and for that reason he decided not to go ahead with the order.
Cancellation only after receipt of item?
The Sub-District Court ruled that the reason behind the right of withdrawal is to protect the buyer (consumer) and to grant him/her the opportunity to form a complete picture of both the item and, depending on the information received, the rights and obligations that run from the purchase for him/her. In this case, however, the item was not received.
Tom Bikes denied that the consumer had been in the store on 23 September and argued that the correct bike was ready. The consumer argued to the contrary. The Sub-District Court evaded this substantive dispute and ruled: “Where the buyer has the right to cancel the purchase after receipt of the item, it must [be] further assumed that he also has that right already prior to receipt of the item.” This appears to me, in particular for pragmatic reasons, to be correct. Why should you have to wait until the receipt of the item to proceed with cancelling the order if shortly after placing the order you change your mind for any reason whatsoever? After all, it does not matter, legally speaking, why you cancel the order.
The next step is to determine if the purchase has been cancelled and, if that is the case, whether this has been done in a timely manner. It would then seem that the Sub-District Court makes a somewhat rash decision. The Court held:
“[…] The periods of Article 46d of Book 7 of the Dutch Civil Code begin on the date of receipt. The Sub-District Court seeks a connection with the period applicable to the performance of services, for which a period of three months (cf. Article 46d of Book 7 of the Dutch Civil Code) is applicable, to begin from the conclusion of the agreement. It must therefore be assumed that [the defendants] have cancelled in due time. After all, it is not in dispute that, in any case [the defendants] indicated per the e-mails of 26 and 28 October 2010 to no longer desire the delivery of the bike.” [underlining by EJP]
This is incorrect. The fact that in the present case a connection is sought with the initial moment for the purchase of services is understandable. Nevertheless, it is incorrect that in that case a period of three months is applicable. That period applies to both property and services only if the seller has not fulfilled the applicable obligations to disclose information required by law. For ‘connoisseurs’ of the law, see Article 46i(1) of Book 7 in conjunction with Article 46d(1) of Book 7 of the Dutch Civil Code. Therefore, the Sub-District Court should have first determined whether the obligations to disclose information had been breached. If that is not the case, then the period of 7 business days is applicable; then the consumer in the present case would have been too late with his termination statement on 25 October 2010, the agreement would consequently have still been valid and he would have had to pay.
Derogation in provisions of general conditions invalid!
In the present dispute, Tom Bikes also relied on its general conditions, which state that orders could be cancelled solely within a period of 7 business days. The Sub-District Court ruled correctly that this reliance does not hold, because derogations from the statutory system may not be to the detriment of the consumer (Article 46j of book 7 of the Dutch Civil Code). Consequently, web retailers will have to be careful, because the period of 7 business days can also be 3 months. In short, it is not possible to state in your general conditions that solely the period of 7 business days is applicable. This would, of course, be possible if you are 100% certain that you will fulfil all obligations to disclose information required by law.
Ernst Jan van de Pas